Skip to main content
IOSH Magazine: Safety, Health and Wellbeing in the world of work - return to the homepage IOSH Magaazine logo
  • Visit IOSH Magazine on Facebook
  • Visit @ioshmagazine on Twitter
  • Visit IOSH Magazine on LinkedIn
Non-verbal communication
How to build trust
March/April 2023 issue

Main navigation

  • Home
    • Browse previous issues
    • Member accolades
    • Member tributes
  • Health
    • Mental health and wellbeing
      • Bullying
      • Drugs and alcohol
      • Mental health
      • Stress
      • Wellbeing
    • Musculoskeletal disorders (MSDs)
      • Ergonomics
      • Manual handling
      • Vibration
    • Occupational cancer
      • Asbestos
      • Hazardous substances
      • Radiation
  • Safety
    • Incident management
      • Chemicals
      • Electricity
      • Fire
      • First aid
      • Slips and trips
    • Non-health related fatalities
      • Road safety
      • Work at height
    • Risk management
      • Confined spaces
      • Disability
      • Legionella
      • Lifting operations
      • Lone workers
      • Noise
      • Personal protective equipment
      • Violence at work
      • Work equipment
      • Workplace transport
  • Management
    • Human factors
      • Accident reduction
      • Behavioural safety
      • Control of contractors
      • Migrant workers
      • Older workers
      • Reporting
      • Safe systems of work
      • Sickness absence
      • Young workers
    • Leadership and management
      • Employee involvement
      • Management systems
    • Management standards
      • ISO 45001
      • ISO 45003
    • Planning
      • Assurance
      • Compliance
      • Emergency planning
      • Insurance
    • Rehabilitation
      • Personal injury
      • Return to work
    • Strategy
      • Corporate governance
      • Performance/results
      • Regulation/enforcement
      • Reputation
    • Sustainability
      • Human capital and Vision Zero
  • Skills
    • Communication
    • Personal performance
      • Achieving Fellowship
      • Career development
      • Competencies
      • Personal development
      • Professional skills
      • Qualifications
    • Stakeholder management
    • Working with others
      • Leadership
      • Future Leaders
  • Jobs
  • Covid-19
  • Knowledge Bank
    • Back to basics
    • Book club
    • Infographics
    • Podcast
    • Reports
    • Webinars
    • Videos
  • Products & Services
  • Management
    • Human factors
      • Sickness absence
      • Accident reduction
      • Behavioural safety
      • Control of contractors
      • Migrant workers
      • Older workers
      • Reporting
      • Safe systems of work
      • Young workers
    • Leadership and management
      • Employee involvement
      • Leadership
      • Management systems
    • Management standards
      • ISO 45001
      • ISO 45003
    • Planning
      • Assurance
      • Compliance
      • Emergency planning
      • Insurance
    • Strategy
      • Corporate governance
      • Performance/results
      • Regulation/enforcement
      • Reputation
    • Sustainability
      • Human capital and Vision Zero
  • Health
    • COVID-19
    • Mental health and wellbeing
      • Bullying
      • Drugs and alcohol
      • Mental health
      • Stress
      • Wellbeing
    • Musculoskeletal disorders (MSDs)
      • Ergonomics
      • Manual handling
      • Vibration
    • Occupational cancer
      • Asbestos
      • Hazardous substances
      • Radiation
  • Safety
    • Incident management
      • Chemicals
      • Electricity
      • Fire
      • First aid
      • Slips and trips
    • Non-health related fatalities
      • Road safety
      • Work at height
    • Risk management
      • Confined spaces
      • Disability
      • Legionella
      • Lifting operations
      • Lone workers
      • Noise
      • Personal protective equipment
      • Violence at work
      • Work equipment
      • Workplace transport
  • Skills
    • Communication
    • Personal performance
      • Career development
      • Competencies
      • Personal development
      • Qualifications
      • Professional skills
      • Achieving Fellowship
    • Stakeholder management
    • Working with others
      • Leadership
      • Future Leaders
  • Transport and logistics
  • Third sector
  • Retail
  • Mining and quarrying
  • Rail
  • Rehabilitation
    • Personal injury
    • Return to work
  • Utilities
  • Manufacturing and engineering
  • Construction
  • Sector: IOSH Branch
    • Sector: Northern Ireland
    • Sector: Midland
    • Sector: Merseyside
    • Sector: Manchester and North West Districts
    • Sector: Ireland East
    • Sector: Ireland
    • Sector: Edinburgh
    • Sector: Desmond-South Munster
    • Sector: Qatar
    • Sector: Oman
    • Singapore
    • Sector: South Coast
    • Sector: South Wales
    • Sector: Thames Valley
    • Sector: Tyne and Wear
    • Sector: UAE
    • Sector: West of Scotland
    • Sector: Yorkshire
  • Healthcare
  • Sector: Fire
  • Sector: Financial/general services
  • Sector: Energy
  • Education
  • Sector: Communications and media
  • Chemicals
  • Sector: Central government
  • Catering and leisure
  • Agriculture and forestry
  • Sector: Local government
  • Sector: IOSH Group
    • Sector: Financial Services
    • Sector: Sports Grounds and Events
    • Rural industries
    • Sector: railway
    • Public Services
    • Sector: Offshore
    • Sector: Hazardous Industries
    • Sector: Food and Drink
    • Sector: Fire Risk Management
    • Education
    • Construction
    • Sector: Aviation and Aerospace
Quick links:
  • Home
  • IOSH Magazine Issues
  • Jan/Feb 2021
News
Safety
Noise
Violence at work

Worker’s appeal for damages after ‘horseplay’ dismissed

Open-access content Tuesday 19th January 2021
From the archive:  Just so you know, this article is more than 2 years old.
HIRES_credit_Cherries-shutterstock_730721986

iStock

A contractor who suffered hearing loss following a practical joke by a company employee has been unsuccessful in his claim.

Site fitter Mr Chell appealed against a decision to dismiss his claim for damages against Tarmac Cement and Lime Ltd, following an incident at its site.

He had been contracted out to Tarmac Cement and Lime’s quarry site. The company had its own fitters but also contracted external workers.

It was reported that there were tensions between the employees and the external contractors as the employees believed their jobs were at risk. Mr Chell had raised the issue with Tarmac Cement and Lime and made them aware of the tensions.

A few weeks later, as a practical joke, an employee brought on-site some pellet targets that exploded when struck. The employee placed some pellets on Mr Chell’s workbench and struck them with a hammer. As a result, Mr Chell suffered a perforated eardrum, hearing loss and tinnitus.

The judge ruled it wasn’t foreseeable that there was a risk of injury to Mr Chell or any external worker from a deliberate employee act of horseplay or malice

In his claim for damages, Mr Chell argued that the employer was vicariously liable for the actions of its employee and that it had breached its duty of care by failing to provide a safe working environment.

In assessing for vicarious liability, the judge applied the test in Lister v Hesley Hall Ltd (2001). This case stated that employers could be vicariously liable for unauthorised, intentional wrongdoings committed by an employee providing there was a connection between the wrongdoings and the work for which they were employed, to deem it within the scope of employment.

Applying that test, the judge ruled that the employee’s actions were not within the field of activities assigned to them by their employer, and so there was no link for vicarious liability.

The judge accepted that the employer was aware of tensions between its employees and contractors, but this had not been serious enough to reasonably suggest that there was a risk of violent acts or physical confrontation. Mr Chell claimed he had asked to be taken off-site but this was rejected, with evidence cited that contradicted this.

The judge ruled that the employer had sufficient health and safety measures in place and it wasn’t foreseeable that there was a risk of injury to Mr Chell or any external worker from a deliberate employee act of horseplay or malice.

On appeal, the judge agreed with this ruling, stating that the vicarious liability test had been correctly applied and all relevant factors considered.

The appeal judge agreed that horseplay, ill-discipline and malice were not matters expected to be to be found in a risk assessment, and the existing health and safety measures were sufficient. They agreed it was expecting too much of an employer to implement a policy or site rules that covered the level of horseplay or the playing of practical jokes, and nothing more could have been reasonably expected.

The judge argued that the fact Mr Chell was found not to have requested to be moved beforehand showed the true level of his concern at the time, which was lower than retrospectively argued. The appeal for damages was dismissed.

This content has been provided by Cedrec Information Systems.

IOSH JanFeb21_Full LR.jpg
This article appeared in our Jan/Feb 2021 issue of IOSH Magazine .
Click here to view this issue

You may also be interested in...

Bouncy-castle_iStock-507214885

 Pub boss lands suspended sentence over unsafe play equipment

Tuesday 16th February 2021
A pub landlord has been handed a suspended prison sentence after a boy sustained head injuries when he fell from an inflatable slide.
Open-access content
web_p52-53_HIRES_GettyImages-859638972_v2.png

 Proportionality - a synoptic view

Wednesday 13th January 2021
Laurence Ball-King GradIOSH discusses what is hindering proportionality in occupational safety and health.
Open-access content
friday_train-scotland_iStock-534741355

 ORR updates guidance to improve safety at level crossings

Thursday 21st January 2021
UK's rail regulator's proposed guidance is designed to improve risk assessments at level crossings
Open-access content
caution-sign-around-playgoung_credit_F-Armstrong-Photography_shutterstock_1691864137_v2

 Council fined over death of girl, 5, in rotten swing collapse

Friday 22nd January 2021
Tower Hamlets Council has been fined £330,000 after a child died when playground equipment collapsed on her in a park.
Open-access content
Nestle-logo_Credit_JHVEPhoto_shutterstock_1806219703

  Nestlé in the dock after worker’s arm was dragged into machine

Friday 15th January 2021
Chocolate manufacturing giant Nestlé has been fined £600,000 after an employee was pulled into a production machine.
Open-access content
Rack-of-hard-hats_iStock-151629399

 Hard hat recycling scheme goes from strength to strength

Thursday 14th January 2021
Yes Recycling is celebrating three years of The National Hard Hat Recycling Scheme.
Open-access content
Topics
News
Safety
Noise
Violence at work
Share
  • Twitter
  • Facebook
  • Linked in
  • Mail
  • Print

Latest Jobs

Health and Safety Improvement Manager

Leeds
£35000 - £50000 per annum
Reference
5452992

SHEQ Systems Advisor

Up to £40000.00 per annum + Car Allowance
Reference
5452988

Senior Health and Safety Manager

Reading
Up to £65000.00 per annum + Great Car Allowance & Benefits
Reference
5452983
See all jobs »

Sign up for regular e-alerts

Receive the latest news and features, free to your inbox

Sign up

Subscribe to IOSH magazine

Receive the print edition straight to your door

Subscribe
IOSH Covers
​
FOLLOW US
Twitter
LinkedIn
YouTube
CONTACT US
Contact us
Tel +44 (0)20 7880 6200
​

IOSH

About IOSH
Become a member
IOSH Events
MyIOSH

Information

Privacy Policy
Terms & Conditions
Cookie Policy

Get in touch

Contact us
Advertise with us
Subscribe to IOSH magazine
Write for IOSH magazine

IOSH Magazine

Health
Safety
Management
Skills
IOSH Jobs

© 2023 IOSH • IOSH is not responsible for the content of external sites

ioshmagazine.com and IOSH Magazine are published by Redactive Media Group. All rights reserved. Reproduction of any part is not allowed without written permission.

Redactive Media Group Ltd, 71-75 Shelton Street, London WC2H 9JQ